Wright v. Vill. of Williamsport

• Decision Date: 21 June 2019
• Docket Number: No. 18CA14,18CA14
• Citation: 2019 Ohio 2682,140 N.E.3d 1
• Parties: Gary WRIGHT, Plaintiff-Appellee, v. VILLAGE OF WILLIAMSPORT, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

140 N.E.3d 1
2019 Ohio 2682

Gary WRIGHT, Plaintiff-Appellee,
v.
VILLAGE OF WILLIAMSPORT, et al., Defendants-Appellants.

No. 18CA14

Court of Appeals of Ohio, Fourth District, Pickaway County.

DATE JOURNALIZED: June 21, 2019

Warren M. Enders and Acacia B. Perko, Columbus, Ohio, for appellant.

Sean Harris, Columbus, Ohio, for appellees.

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that denied summary judgment to the Village of Williamsport, defendant below and appellant herein.¹ The trial court determined that appellant is not immune from liability under R.C. Chapter 2744 for the negligence and loss-of-consortium claims asserted by Gary and Peggy Wright, plaintiffs below and appellees herein. Appellant assigns the following error for review:

"THE TRIAL COURT ERRED BY DENYING POLITICAL SUBDIVISION IMMUNITY TO THE VILLAGE OF WILLIAMSPORT BECAUSE IT IS ENTITLED TO A GENERAL GRANT OF IMMUNITY, NONE OF THE EXCEPTIONS UNDER R.C. 2744.02(B) APPLY TO BAR IMMUNITY, AND, EVEN IF AN EXCEPTION APPLIES, AT LEAST ONE DEFENSE APPLIES TO ESTABLISH NON-LIABILITY."

{¶ 2} In July 2017, Williamsport Village Council member Pennie McCain spoke to Gary Wright about submitting a bid for repairing or replacing the roof of the village's maintenance barn. Wright subsequently visited the maintenance barn to examine the roof. As he examined the roof, Wright fell through a painted-over skylight and sustained serious injuries.

{¶ 3} Appellees filed a complaint against appellant² and alleged that appellant negligently and/or recklessly allowed a dangerous condition to exist at its maintenance barn. In particular, appellees claimed that the roof contained a fiberglass skylight painted the same color as the roof and looked identical to the roof's surface. Appellant denied liability and asserted

140 N.E.3d 6

it is statutorily immune from liability for appellees' claims.

{¶ 4} Appellant later requested summary judgment and asserted that because it is entitled to statutory immunity, it cannot be liable for appellees' claims. Appellant contended that it is entitled to the presumption of immunity and that none of the exceptions to immunity apply. Appellant asserted that R.C. 2744.02(B)(4) does not apply because appellees cannot establish that the injuries arose from a village employee's negligence. Appellant argued that Wright went onto the roof without informing any of the village's employees and that the village did not have any chance to discuss the roof's condition before Wright walked on the roof. Appellant further claimed that even if one of its employees was negligent, the discretionary defense reinstates immunity.

{¶ 5} In their memorandum contra, appellees argued that the appellant breached its duty of reasonable care owed to business invitees. Appellees claimed that the village employees breached their duty to warn him of the hidden danger associated with the roof's painted-over skylights. Appellees disputed any argument that the dangers associated with the roof were open and obvious and alleged that the skylights were painted the same color as the roof and that it was impossible for Wright to have known that the roof contained skylights through which he might fall.

{¶ 6} In reply, appellant contended that the dangers associated with the roof were open and obvious and that it did not, therefore, have a duty to warn Wright of the open and obvious nature of the hazard. Appellant asserted that Wright knew that the roof needed to be "removed and replaced," and this knowledge shows that he was aware of the roof's dangerous condition. Appellant thus alleged that it did not have a duty to warn Wright of the roof's dangerous condition.

{¶ 7} To support their arguments, the parties referred to the depositions filed in the case. Wright stated in his deposition that village council member McCain informed him that the council was interested in obtaining bids to replace the maintenance barn's metal roof. Wright asked McCain if he needed to meet with, or speak to, anyone before looking at the roof, and she told him that he did not.

{¶ 8} Wright explained that when he examined the roof, he walked across the roof and paid attention to where the nails were located. He related that he normally tries to walk where the nails are located because that is "where the support of the structure is of the roof." Wright stated that as he walked across the roof, he suddenly fell through the roof. Wright also reported that he did not see any indications that the roof contained a skylight or other noticeable defects.

{¶ 9} After reviewing the evidentiary materials, the trial court denied appellant's request for summary judgment. This appeal followed.

{¶ 10} In its sole assignment of error, appellant asserts that the trial court incorrectly concluded that it is not entitled to immunity for appellees' claims. Appellant argues that the evidence fails to suggest that any of its employees were negligent. Specifically, appellant alleges that the evidence does not indicate that any of its employees had a duty to warn Wright about the dangers associated with examining a roof that needed to be repaired or replaced. Instead, appellant claims, Wright's knowledge that the roof needed to be repaired or replaced placed him on notice that the roof might be in a dangerous condition. Appellant thus argues that it did not have a duty to warn Wright of any

140 N.E.3d 7

further dangers associated with examining a roof in need of repair or replacement.

{¶ 11} Appellees, however, contend that the trial court correctly denied appellant's summary judgment request and that questions of fact remain as to whether any of appellant's employees were negligent. Appellees thus claim that because genuine issues of material fact remain regarding appellant's employees' negligence, appellant is not entitled to a finding that it is statutorily immune from liability for appellees' injuries.

STANDARD OF REVIEW

1

Summary Judgment

{¶ 12} Initially, we note that appellate courts conduct a de novo review of trial court summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose , 156 Ohio St.3d 425, 2019-Ohio-1329, 128 N.E.3d 209, ¶ 8 ; Pelletier v. Campbell , 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13 ; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. Grafton , 77 Ohio St.3d at 105, 671 N.E.2d 241.

{¶ 13} Civ.R. 56(C) provides, in relevant part, as follows:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶ 14} Accordingly, pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Pelletier at ¶ 13 ; M.H. v. Cuyahoga Falls , 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12 ; Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

2

Immunity

{¶ 15} "Whether a party is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment." Pelletier at ¶ 12, citing Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) ; see also Riscatti v. Prime Properties Ltd. Partnership , 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 17 (noting the importance of deciding a political subdivision's entitlement to immunity before trial). Hence, appellate courts conduct a de novo review of a trial court's determination regarding political-subdivision immunity. Pelletier at ¶ 13,

140 N.E.3d 8

citing Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. De novo review means that we afford no deference to the trial court's decision and independently review whether the trial court correctly determined the political subdivision's immunity. Dolan v. Glouster , 4th Dist. Athens Nos. 11CA18, 11CA19, 11CA33, 12CA1, 12CA6, 2014-Ohio-2017, 2014 WL 1901133, ¶ 106.

B

POLITICAL...